Subject:

Requested By:

Questions:

May a person be guilty of operating a vehicle upon the public highways while under the influence of intoxicating beverage if such person's breathalyzer reading was less than 0.10%?

(2)

May a magistrate on initial appearance mark a citation, "No probable cause found due to breathalyzer reading of less than the prima facie evidence as per G.S. 20-138(b)"?

Conclusions:

(1)

Yes.

(2)

No.

As to Conclusion 1, G.S. 20-138(a) states:

"§ 20-138. Persons under the influence of intoxicating liquor. -- (a) It is unlawful and punishable as provided in G.S. 20-179 for any person who is under the influence of intoxicating liquor to drive or operate any vehicle upon any highway or any public vehicular area within the State."

It is entirely possible that a person may be under the influence of intoxicating beverage and still have a breathalyzer reading of less than 0.10%. The rule laid down by our Court is as stated in State v. Ellis, 261 N.C. 606, wherein the Court said:

"The correct test within the meaning of the statute is not whether the party charged with the violation thereof had drunk or consumed a spoonful or a quart of intoxicating beverage, but whether a person is under the influence of an intoxicating liquor or narcotic drug by reason of his having drunk a sufficient quantity of an intoxicating beverage or taken a sufficient amount of narcotic drgus, to cause him to lose normal control of his bodily or mental faculties, or both, to such an extent that there is an appreciable impairment of either or both of these faculties.

It is common knowledge that a very small amount of an intoxicating liquor might substantially affect the mental and physical faculties of one person, while such an amount might not appreciably affect some other person.

The gravamen of the offense charged here, as in the Carroll case, was driving a motor vehicle upon a public highway while under the influence of an intoxicant."

The breathalyzer was not meant to nor has it replaced the officers' powers of observation. The breathalyzer is only a tool to work with and assist the officer in the performance of his duties. The basic law applicable to G.S. 20-138(a) is still as set out in the quote from State v. Ellis above.

Regarding Conclusion 2, if a person is brought before the magistrate whom the officer has arrested for DUI and the breathalyzer reading is less than 0.10%, if no other chemical analysis had been made, certainly no probable cause exists as to a charge of 0.10% pursuant to G.S. 20-138(b). Two other possibilities exist. First such person may be guilty of driving under the influence pursuant to G.S. 20-138(a) or careless and reckless driving pursuant to G.S. 20-140(c), either of which must be established from the testimony of the arresting officer from his observations and investigation.

It should be noted that G.S. 20-138(b) creates a separate offense from that created under G.S. 20-138(a), and even though by statute a violation of G.S. 20-138(b) is a lesser included offense of G.S. 20-138(a), it does not change the basic law applicable to G.S. 29-138(a). It is simply a violation to operate a vehicle upon any highway or public vehicular area with a blood alcohol of 0.10% or more. G.S. 20-138(b) does not create a presumption -- only that a prima facie case would be made out once it is established that a person has operated a vehicle upon a highway or public vehicular area and that his blood alcohol was 0.10% or more at the time of such operation.

The presumptions which formerly appeared in G.S. 20-139.1(a) were written out of the law at the time 0.10% under G.S. 20-138(b) was written in. There is no longer a presumption under G.S. 20-139.1(a) and the fact of 0.10% only makes out a prima facie case when properly presented.

Under the provisions of G.S. 20-138(a), the committing magistrate should listen to the sworn testimony of the officer and issue a warrant under this section only if such testimony establishes probable cause that the person brought before him by the officer or about whom the officer is giving sworn testimony did operate a vehicle upon the highways or public vehicular area while under the influence of intoxicating beverage to such extent as to cause him to lose normal control of his bodily or mental faculties, or both, to such extent that there was an appreciable impairment of either or both of these faculties. The fact that a jury may not convict if the breathalyzer results are less than 0.10% is immaterial.